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tv   [untitled]    July 5, 2012 1:00pm-1:30pm EDT

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branchs. and second that my association with byu and the sponsoring church means i must know mitt romney. about that first assumption, the fact that i once had a statutory obligation to defend the powers of the senate when they were called into question and to advice the senate leadership how best to use those powers does not mean that i don't have an appreciation for the importance of the executive power in the constitutional scheme. now you may think that the impeachment trial of the president of the united states an odd place to display such appreciation, but as those of us who are involved in the clinton impeachment will recall the senate leadership was committed to showing more respect to the office of the president than mr. clinton had. and so for judge silverman and like minded skeptics, i assure you that i have no bias here. although i do note that the powers of congress come first in the constitution. but we can talk about that later. as you've seen from your materials we have assembled a
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distinguished panel today. departing from the pattern used by judge baya last evening, i will provide brief introductions to all the panelists at once and then turn the time over to them. in the order in which they'll be speaking today, we first have professor levinson of the university of texas law school. he has written literally hundreds of articles and book reviews. if i can add something personal here, his scholarship on the second amendment was of special interest to this member of the panel that first considered the case that was to become keller. but we're not here to talk about that. professor is the author of five books including one framed america's 51 constitutions in the crisis of governance which is coming out this month which was referred to before. among his most recent publications on the executive power is an 2010 article in the minnesota law review titled
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"constitutional dig tatership" its dangers and designs. an issue which he may address further today. next will be my friend professor john yu of berkeley's law school. i first met professor yu when we worked together as senate staffers. professor yu's name is synonymous with the robust and muscular understanding of the executive power. he's published widely on foreign affairs. national security and constitutional law and has served in all three branchs of government. he was deputy assistant attorney general and the office of legal council. general counsel to the general judiciary. the professor is stanford local. we're glad to have the strong representation from faculty at this conference.
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on international law and a tufs after to the legal advisor
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in 2008. czars, libya, and perspective on executive power. the relationship between constitutional design and executive power. to give each panelist sufficient time, i will vigorously monitor the time limits. we're going to ask each panelist to speak for ten minutes rather than passing notes as they approach that time, i will simply announce when one minute is left. and because i favor the manner
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of chief justice roberts over his predecessor, i will not cut you off mid syllable, but will allow you to finish the sentence. with that in mind i turn the floor over to professor levinson. >> thank you. i want to thank the organizers for inviting me here. i think the panels have been outstanding. with regard of the title of the original panel, one of the reasons i think this might not break down unusually predictable liberal conservative lines, i tend to share the views of my very good friend bruce ackerman that it is very unfortunate development to have more and more czars appointed. i do think the reason for more and more czars is failure of the senate to give timely hearings and vote people up and down and perhaps we can talk about that.
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but i don't think the rise of czars is anything to be proud about. i disagree with the robust war power offered. i therefore disagree with a number of things that john has written. we could always talk about recent developments and things like that. but i do want to go to, what we agreed on more was the something to talk about in part because it was my central interest these days. i want to try to tie this to both of the panels that we've had. the one last night on among other things line item vetoes and the one this morning because i do -- one of the things i found fascinating with regard to
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the second panel was the degree of radicalism shown by my good friend mike mcconnell who i think is probably not usually described as a radical. but i think that judge professor michael did touch on some absolutely crucial issues that are central to our particular topic. the degree of his radicalism perhaps can be kpempllyfied to the extent not only he, but a number of skugss replicated the great debate in the 1960's in china over the issue of red. that is to what degree the state particularly if it is a modern state and last night i do think even richard epstein, you know, waved the flg of surrender with regard to the existence of a
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very significant administrative state that will engage in a wide degree of rule making and then as several of the speakers have articulated very carefully the debate is well how should the rules be made and what is the relative tradeoff between looking to land this kind of experts or to looking at the demos, the democratic critique of expert administration, or to adapt a little bit to the chinese analogy. it's not the demos at large, but a particular portion of the demos with a correct political values. and where politics is seen by and large as the choice of values. rather than the ar tinglation of rational means ends relationships to how you get
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there where expert knowledge can be relevant. but there's one other way in which i appreciated michael's radicalism. and think it doesn't go far enough because michael called for two things. if first is basic reform of congressional organization which i strongly agree with. he has talked about the filibuster rules and other aspects of congressional organization. and he also suggested and several other speakers suggested that it's time to return to administrative procedure act and to ask if an act basically drafted in the mid 40s still serves us well 60 years later. i'm not a professor of administrative law. i have no informed opinions on the act. but what i thoroughly applaud is michael injunction that we
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actually look with a critical eye at whether the act really is fit for our present government. and what has become my hobby horse in recent years is that i think we should have the same spirit of critical scrutiny toward the constitution of the united states. we could have an argument. though frankly, i think it would not be very productive. this point with regard to the debates about say john's view of executive power and the views of his critics it's a little bit like the comedians convention in which we can shout out a number and you laugh or not, but everybody knows what the arguments are. i'm willing to stipulate, something i in fact don't really believe, but stipulate for ache of argument that john gets it exactly right in his reading of what the constitution means. that in fact it was designed to bring the president with the
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powers of kings. now what i would ask us to think about is even if again by stipulation there is reason to do that in 1787 does it make much sense today if we were designing a constitution anew. one thing is there was no reason for the american revolution frankly other than that george iii was one of the most inept kings of all time with regard to responding to the grievances of the colonists. if he had been more politically astute and accepted edmund burke's advice, for example, there's every reason to think we would have ended up like canada rather than a very bloody and destructive war that got us our independence. i'm not saying that i'm not glad we're independent, but if one is
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making analogies then certainly it doesn't -- there's a lot of things wrong with monarchies. one of the questions that i have that i think we ought to spend much more time talking about is whatever you think the executive power means and say for purposes of this panel i'm willing to defer to john, whether i agree with him or not. is the modern president likely to be somebody to whom we defer as much as we do across the spectrum of say commander in chief, chief economist, chief public health officer of the country, chief disaster specialist. and frankly it seems to me that the 21st search the answer is no. that presidents of the united states are perhaps fairly extreme examples of not reds,
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but of amateurs versus experts. with regard to say the commander in chief power i think the last president in whom i have genuine confidence to be commander in chief was dwight eisenhower. and that's no coincidence. he actually was the defacto in chief of the greatest military victory in history. and a very important book called eisenhower 1956 frankly in spite of my own politics i ended this book relieved that ike beat stevenson for the presidency because ike was able to stand up in to the military because he knew something about the military. since then, we've had a string of amateur presidents. some of whom you might like. some of whom you don't. i'm not a fan of george w. bush
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and therefore i was horrified by some of the things that john wrote about presidential power. i assume that many of you in this room were no fans of bill clinton or barack obama in terms of their capacity to be commander in chief. i think all of us are right. that you wouldn't select out these people to make the decisions of peace and war, life and death. shift to the financial crisis. one of the most interesting books on that was written by a reporter for "the wall street journal." and one of the points he made is that the decisions again, whether you like them or not, the decisions were made by the head of the fed that is ben bernanke and secretary of treasury pahlsson, who wants to stipulate and know something about the economy. george w. bush basically is next to nowhere to be seen in this book. and nobody in the reviews has
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suggested that he got it wrong. and frankly i'm more re-assured by bernanke or other heads of the fed, like more than bernanke than let's say either bush or obama whom i supported with great pleasure. and i do think there's so many issues, one of the things i found bizarre about last night's very, very interesting panel is the assumption that in talking about the line item veto there's only one constitution in the united states. now again i'm going to stipulate that the supreme court got it absolutely right as a reading of constitutional law that the u.s. constitution doesn't allow the line item veto. what i think is just bizarre is that we don't even talk about the fact that most states have the line item veto.
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most states reject the unitary executive. the unitary executive is an aberration of one of the 51 constitutions of the united states. and i think that especially weak law schools, the higher you go up in the pecking order the less likely the studentsor professors are to know that their exists a constitution except perhaps in california where it's impossible not to know the importance of the state constitution. i think it's extraordinarily important to integrate the little laboratories of experiment tags and see how different a lot of the states are including i suspect administrative law and whether there might be something to learn from that rather than to repeat what are basically now wrote arguments about how best to interpret i think the inevident nlly vague and ambiguous terms of the united states constitution.
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>> thank you. >> i'd like to thank the federalist society for having -- giving me the chance to leave the city of berkeley and come to a conservative place like stanford university. i'm glad the organizers are able to arrange -- i don't think they're real protesters outside claiming darth vader. they know me too well. they know i love the imperial side in all the star wars movies. i always think it's unfair when the gentlemen die knights try to fix everything. they're like federal judges and judicial review. they don't fit into the constitutional system. they have rogues. they have cleshs following them around doing their bidding. and they intervene in all levels of the government. it's very interesting. i recommend someone's going to write a student note about this now. i'm sure. >> but the other reason is because if you're getting protested by darth vader that means you're the good guys.
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next time i get i'm going to get protested by someone in a curious george outfit who's going to kus me of working in league with the man in the yellow hat. last thing i'd like to say it's a really pleasure to be here not just with my friends on the panel, but with i'm really glad to be on a panel that does not have -- one of the few panels that does not have richard epstein on it. i am finally going to get a word in edgewise. >> here he comes. >> one personal story, richard and i have this podcast we do every two weeks. after one we happened to be in new york. i thought it would be fun to go to a jewish deli with richard.
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he instructed to proceed the waitress on what all the sandwiches should have on them. that was a lot of fun. i very much enjoyed the remarks. i agree that the scholarship in our field is moving in this direction more about constitutional design rather than historical legitimacy or authenticity. i wanted to take what he had to say a little bit farther. in that i'm not so convinced necessarily that even if we were going to design a modern presidency today knowing what we know now that we would design one that's that different than what the regional presidency was supposed to be. i think a lot of the problems with the presidency has to do with a lot of duties and purposes that we assume the presidency has which was not necessarily from the framers in 1789 wanted. so we're having a difficulty
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reconciling who we elect as president and we can say sthef various deficiencies and the kinds of attacks and duties that we expected them, which i think goes well beyond a constitutional design. the other thing i just mentioned, i thought it was really fascinating and because of his talk i'm going to go out and buy his book at lunchtime. that doesn't mean you shouldn't buy mine, too. he said it got me thinking whether the president's that he's talking about, the good and bad presidents which i've been interested in. it would seem to me that abraham lincoln would be a president we didn't want to elect to office. you talk about someone who was a loser. he had only one won term to the house. he became famous by losing a second race. and he was the second choice. you couldn't have predicted that he would be good at the presidency. he didn't have any expertise. you might have wanted to elect george mcclen nonduring the
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civil war. and then on the flip side, i was thinking what president in our time might have been most on paper most prepared for the domestic side to have presidency, surrounded him with the smartest people. and the person i came up with was richard nixon. great foreign policy president. think who he had working for him in domestic policy, george schultz, moynihan, and he had some very innovative ideas, doesn't mean that his presidency turned out so well. this brings me to the point i was going to make in broader scope was that part of the reason we have this problem is because i think the framers designed for the presidency is quite different than the one we expect. today we tend to focus on the american presidency, equal parts domestic program. the framers actually had a much narrower view for the presidency
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in mind. i think the framers expected the executive branch to be primarily devoted to foreign affairs. here i think we have seen in the last ten years president's actually despite george w. bush's presidency trying to actually almost bind themselves in foreign policy. so domestic affairs if you read the federalist papers there's not a lot of discussion about the role to have president in domestic affairs. i think you would be surprised, the framers would be surprised to see the kind of president we had today in this area. they thought the president would be a check on congress not someone who would be constantly urging and pushing congress to enact president's program. so federalist number 70 alexander hamilton says that the vigorous executive is necessary to protect against the irregular and high handed combinations which sometimes interrupt the ordinary course of justice, provide security against
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enterprises and assaults of ambition, faction and annan ki which imminent from the humors of the legislature. tom and i worked in the legislature, there's not a lot of humors there. that's why they rectified that and elected alan frank on the the senate. when you look at the discussion of the veto power by the federalist papers it's not talked about as this sword to be used by the president to convince a congress to enact his or her program. it's discussed as a way for the presidency to protect its own constitutional authorities and to call furnish an additional security against the inaction of improper laws against laws that would be unfriendly to the public good. sko in one respect we have presidents who feel it is their role to promote an active domestic policy to actually in
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some instances integrate themselves with the activities of the legislature. this is something that runs against the framers. i think explains at some level why president obama has been having the problem he's been having in public opinion polls. he got too close to the legislature and the passage of obama care and the tarp and stimulus. in fact, he gets blamed for all of them even though much of those laws were written in congress. but if you talk about all the various shenanigans to get obama care passed. i love all the names like gatorade for florida, the cornhusker deal for nebraska. all those deals. we all attribute them to obama. they're not his doing. but because i think the president came too close to congress too associated with the activity of passing legislation than trying to check congress, the president's opinion polls and his approval by the people start to track the very low opinion we have of members of congress. the flip side i think in foreign
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affairs this is where i think the framers did expect executive branch to come to the floor. it's the only reason you need an independent executive separate from the legislature. we could have a parliamentary system of government where the system appoints the cabinet members that are going to executive their policies. in foreign policy the framers thought you ought to have something different because foreign policy has unique differences. foreign policy is unpredictable. it's difficult for the legislature to pass laws in anticipation of what's going to happen in foreign affairs. we might be willing to accept more errors by a single person in exchange to act faster and more quickly. that's why federalist number 70 says war is the greatest
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challenge. war is best suited to control by the executive. administration by the executive. so i think the basic trade off between, i think his response is you could have a government by legislature which we see in a lot of european countries. but they trade off. it's very hard for a legislatures to act quickly. they may make less mistakes. the more people who participate in a decision the less likely they're going to make an error. in foreign affairs, our constitution creates more checks and tries to make it harder for domestic policy to get past. in part because there is no great harm from slowness in domestic affairs. there's always the states that can regulate. it's not like there's a vacuum or absence of federal action. in foreign affairs, there is no kind of cost from inaction.
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there is a vantage for acting faster. in my one minute left, i bring it back to the actual topic of the panel which is czars in libya. to me i agree with sandy. i don't think czars are constitutionally problematic. i think as a matter of administration it might be a bad idea of policy. i think it's because presidents have taken on themselves to try to get so involved with the legislature. so involved with the laws that they need more and more people to assist them. i don't think it raises any great constitutional difficulty. libya however i think is a demonstration in the last few years about presidents actually have been trying to buy themselves to reduce the kind of vigorous constitutional presidency that should operate in national security and foreign affairs. for example, what struck me about libya was the claim that libya was not a war, which i think would have surprised mr. gadhafi since we were trying to kill him during a conflict. but also that we delayed our
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intervention for two to three weeks to get united nations approval where the current administration thought it was more important to get approval from the united nations than from congress that i thought was a remarkable thing that the president's trying to actually limit its own freedom of action by tying the fate of our national policy here to an organization that's not even part of our political system. thanks very much. >> thank you, professor yu. [ applause ] >> thank you very much. i'm very honored to be here. i wanted to first and foremost thank the organizers of the conference for this invitation. i salute barbara, michael, elan, gabe and your colleagues for organizing this conference. i've had the pleasure of having many of you in class and i'm delighted to see you here. i want to congratulate all of you in the audience. there are many other ways you could have spent your saturday morning. for those of us passionate about
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this topic, we couldn't imagine doing anything different on saturday morning. by kids who are 7 and 5 spend most of their saturday mornings sort of thinking about these very things. that has turned into a dangerous thing. i'll give you one specific example. my 7-year-old daughter said to me, she said, i think there's a problem with one of your doctrines you didn't say what kind of trash, you didn't say where irreconcilable difference take it, how much i could take it or how long i should take before coming back. i might have to change my strategy now. i want to take just a few minutes to make basically just two points. one point is to situate some of this discussion in historical context. the other is to observe how history's evolving.


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